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The U.S. Court of Appeals for the Eleventh Circuit decided that an agreement visual artist Daniel Moore entered into with the University of Alabama didn't prevent him from including Crimson Tide uniforms in paintings, prints and calendars he made of historical scenes of the university's football team. The University of Alabama v. New Life Art Inc., 09-16412. The university had pointed to the broad-based term “licensed indicia” in a 1995 contract Moore signed to make visual renderings for use in school products. But the Eleventh Circuit found: “Other sections refer to 'licensed indicia' being used 'on' products. Another provision instructs that Moore 'shall not contract with any party for the production or application of Licensed Indicia by that party' without authorization. It seems unlikely that uniforms in a painting would be 'produced' or 'applied.' This language implies that the parties intended 'licensed indicia' to refer to the packaging or labels placed upon products, rather than uniforms depicted within the content of a painting, print, or calendar.'” In any case, the appeals court emphasized regarding the university's trademark claims: “[W]e conclude that the First Amendment interests in artistic expression so clearly outweigh whatever consumer confusion that might exist on these facts that we must necessarily conclude that there has been no violation of the Lanham Act with respect to the paintings, prints, and calendars.”

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